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Murtagh v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 2991 (Admin) (25 November 2022) View summary here

Bouchti v London Borough of Enfield [2022] EWHC 2809 (Admin) (09 November 2022) View summary here

Murtagh v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 2991 (Admin) (25 November 2022)

This was a claim for statutory review under s.288 of the Town and Country Planning Act 1990 of an inspector’s decision to award planning permission on appeal for a 15m high 5G mast on Kingston Hill, Coombe. The claimant owned and lived in a cottage abutting the pavement where the proposed mast would be sited.

The claimant challenged the inspector’s decision on two grounds:

1. The inspector failed adequately to consider alternative sites, particularly an existing mast on the same street 100m away from the proposed site, contrary to paragraphs 115 and 117 of the NPPF, or failed to give adequate reasons.
2. The inspector failed to address the impact of the proposed mast upon a yew tree within the claimant’s property which was subject to a Tree Preservation Order (TPO), or failed to give adequate reasons,

In relation to the first ground, Judge Jarman KC found that the inspector had failed to expressly consider the existing mast on the same street. This was an issue specifically raised by the claimant and should have been grappled with by the inspector. In any event, the inspector’s decision left a real doubt as to how he reached the conclusion that the proposed mast was justified at this site – the inspector had concluded that alternative sites submitted by the appellant “would have greater effect” but it was not clear how he had reached this view or what effects he was referring to. For these reasons, the inspector’s decision did not permit an understanding as to why the appeal was decided as it was, and what conclusions, if any, were reached in respect of the existing mast.

In relation to the second ground, it was noted that an objection had been raised based on the basis that the mast could cause potential damage to the roots of the tree subject to the TPO. There was also a specific local plan policy (DM10) which stated that development should not adversely affect trees covered by TPOs and the inspector had failed to consider this. The defendant submitted that there was a distinct regime for the protection of trees by means of the imposition of a TPO and it was therefore not necessary for the inspector to consider policy DM10. The court accepted that there was a separate regime for TPOs but found that policy DM10 remained a material consideration and the policy indicated that the authority did expect it to be shown that development, which the proposed mast would be, would not adversely affect the yew tree. The inspector should have dealt with this issue, particularly as an objection had been raised in relation to this. It would have been open to him to do so by giving reasons why this issue could not justify dismissing the appeal, but he should have dealt with it.

On the basis that each of the grounds of review were made out, Judge Jarman KC quashed the inspector’s decision and ordered that the appeal be remitted for redetermination.

Full Case

This was an unsuccessful challenge to the London Borough of Enfield’s decision to create a permanent “low traffic neighbourhood”. On 2 March 2022, the council made a series of permanent traffic orders under section 6 of the Road Traffic Regulation Act 1984. The effect of these orders was to create a “low traffic neighbourhood” in respect of Fox Lane and the surrounding roads by restricting the flow of traffic through those roads. The orders made permanent the arrangements which had been put in place by a series of experimental traffic orders made in September 2020.

The claimant lives near the area subject to the orders and challenged them on the basis that there were procedural failings flowing from:

a) the council’s failure to comply with the requirements of the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996;

b) deficiencies in the consultation that the Council conducted; and

c) a failure by the council to have regard to its statutory duties to conduct a proper balancing exercise to assess the effect of the proposed orders on “the expeditious, convenient and safe movement of vehicular and other traffic”.

The claimant also claimed that the involvement of two of the council’s members and two of its officers in the Better Streets for Enfield campaign group meant that the decision was approached with a closed mind. Finally, she alleged that there has been irrationality in the decision linked with a breach of the council’s duty to obtain the necessary information to make the decision properly.

The Council accepted there were some errors in the decision-making process, but it did not accept all of the errors asserted by the claimant and denied that any failings that did occur caused substantial prejudice to the claimant. The council argued that:

a) it was not required to disclose further information to the claimant for the purposes of consultation;

b) it had proper regard to the relevant statutory duties and carried out an appropriate balancing exercise;

c) the decision to make the experimental orders permanent was approached with an open mind; and

d) there was no basis for the assertion of irrationality.

Dismissing the claim on all grounds, the court agreed with the council that, although the council failed to comply with certain procedural requirements, these failures did not cause substantial prejudice to the claimant’s interests. The court was also satisfied that the council did consider its statutory duties and carry out the required balancing exercise even if it expressed its conclusions on these matters in short terms. The court added that an elected member’s or an officer’s personal predisposition in favour of an approach in general terms does not mean that they cannot approach their tasks in relation to that proposal in a proper and professional way.

On the irrational question of whether the Council’s decision was made on the basis of data which was too limited to justify the decision, the court considered that the relevant legal test was not whether a reasonable authority could have decided to obtain more information before taking the decision to make the experimental orders permanent but whether a reasonable council could have been satisfied that it had sufficient information on which to take the decision properly. The court held that there will almost always be more information which could be obtained or further investigations which could be undertaken before a public body makes a particular decision, but the task of balancing the advantages and disadvantages of continuing to seek further information was a matter of judgement for the decision-maker rather than one of precise mathematical analysis.

Full Case